United States v. Dotson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-30086

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID DOTSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

David Dotson (Dotson) appeals his convictions for mail fraud

and obstruction of justice stemming from claims he made for

disability benefits. We affirm the convictions.

Facts and Proceedings Below
 On April 5, 2001, Dotson reported a back injury to his

employer, the New Orleans Police Department. He told a

representative of the City’s worker’s compensation administrator

that he incurred the injury as a result of falling from a fence

while chasing a suspect in the course of his job as a police

officer. Based on a doctor’s certification that he was unable to

return to work in any capacity, he was classified as “temporarily

totally disabled” and began receiving the maximum worker’s

compensation benefits allowed by state law, as well as the balance

of his salary from the police department. On April 23, 2001,

Dotson reported additional injuries to his shoulder and chest,

incurred two days earlier as he chased suspects attempting to steal

a car from in front of his house. In addition to being eligible

for worker’s compensation benefits through the police department,

Dotson had purchased a supplemental disability policy in 1997 from

the Police and Firemen’s Insurance Association (PFIA). He filed

claims with PFIA for the above injuries in July of 2001, and began

receiving monthly benefit checks from PFIA in addition to the

worker’s compensation benefits.

During the time Dotson received disability benefits, he also

worked part-time as a night security guard at a local grocery

store. He did not inform either the worker’s compensation

administrator or PFIA of this work. According to the

contemporaneous notes and later testimony of the administrator’s

representative, she specifically asked Dotson during a conversation

2
in October of 2001 whether he had been able to do any other work,

and he replied that he had not. When Dotson filed his claims with

the PFIA, he signed blank forms which were later filled in by the

local agent using information obtained from the agent’s interview

of Dotson. The claim forms Dotson signed include a notation that

“[t]otal disability implies absolute physical incapacity to perform

duties or work of any kind, resulting from sickness or injuries.”

One of the questions on the claim form asks whether the claimant is

“still disabled and unable to work at any job.”

In late October of 2001, Dotson’s job at the grocery store was

terminated after the store’s owner was contacted by FBI agents

investigating Dotson for possible fraud of the worker’s

compensation system. In mid-November of 2001, FBI agents informed

the store’s owner that a check for over $5,000 from Dotson to the

owner had been deposited in one of the owner’s accounts earlier

that month.1 Dotson and his attorney met with an FBI agent and an

Assistant United States Attorney (AUSA) in late November of 2001.

At that time, Dotson presented the AUSA with a copy of a letter

from Dotson dated May 1, 2001 and addressed to the commander of the

police department’s Administrative Duty Division (ADD). In the

letter Dotson informs the commander that he would be working at the

grocery store while out injured. Copies of the letter were

1
The check included the notation “Loan Repayment + Phone.” The owner
subsequently returned the money to Dotson, after subtracting for an unpaid mobile
phone bill.

3
subsequently found in Dotson’s file at the ADD and in his personnel

file kept by his precinct.

In December of 2002 a federal grand jury issued a 20-count

indictment against Dotson. Counts 1 through 15 of the indictment

were for mail fraud, under 18 U.S.C. § 1341, of the City of New

Orleans, Counts 16 through 18 were for mail fraud of PFIA, and

Counts 19 and 20 were for obstruction of justice. One obstruction

count alleged that Dotson had planted the letter he presented to

the AUSA into the police department’s files, and that he had not

given the letter to the police commander. The other obstruction

count alleged that Dotson’s check to the grocery store owner in

November 2001 was an attempt to influence a witness.

The case was tried before a jury in September of 2003. In

addition to testimony from personnel of PFIA and the worker’s

compensation administrator that the insurers had not been told of

Dotson’s other employment, the government offered testimony from

police department personnel that the letter from Dotson found in

his files was not properly logged and hole-punched. The goverment

further offered testimony from an ex-girlfriend of Dotson’s who

said Dotson told her he planted the letter in one of the files, and

from the grocery store owner, who said he did not have any loans

outstanding to Dotson at the time the store received a check from

Dotson in early November. There was also evidence that Dotson had

increased the benefit level of his PFIA policy in February of 2001,

and that he had asked the grocery store in early April of 2001 to

4
remove him from the payroll and instead pay him in cash.2 Dotson

presented testimony from a fellow officer that he had run into

Dotson at the precinct station in May of 2001 and that Dotson had

shown him the letter that was later found in Dotson’s personnel and

ADD files. Dotson’s counsel also elicited testimony indicating

that the police department’s document logging and filing procedures

were not always precisely followed by department personnel. With

respect to the PFIA benefits, Dotson submitted evidence that the

PFIA policy issued to him defined disability in terms of “your

job,” in apparent contradiction to the language on the claim form.

At the close of the government’s evidence and again at the

close of all the evidence the defendant moved for a judgment of

acquittal on the PFIA mail fraud counts. The defendant argued that

disability insurance policies are required under Louisiana law to

consider a claimant “totally disabled” as long as he cannot perform

his former job, whether or not he can perform some other job.

Therefore, according to the defendant, he was entitled to

disability benefits despite working at the grocery store, and

cannot have defrauded PFIA by not disclosing that job. The

district court denied the motion without prejudice to its being

renewed after trial depending on the verdict. The jury found

Dotson guilty on all counts, but the defendant submitted no further

motions or briefing on the PFIA counts. On January 21, 2004 the

2
Dotson had originally been paid by the store in cash, but had been put on
the payroll in early 2001 at his request.

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district court sentenced Dotson to 21 months’ imprisonment for each

count, to be served concurrently, a special assessment of $2,000,

and restitution of the $11,252 he had received from the City of New

Orleans and the $5,280 he had received from PFIA.

Discussion

On the same theory raised in his motions for acquittal, Dotson

argues that the evidence presented at trial was insufficient to

convict him on Counts 16–18 involving defrauding PFIA. In the

event that his conviction on Counts 16–18 is vacated, Dotson

further argues that he should receive a new trial on the remaining

counts because of prejudicial “spillover” to these counts of

evidence and accusations involving the vacated counts. In addition

to disputing these arguments on their merits, the government argues

that Dotson has waived his assertion of error on Counts 16–18.

I. Standard of Review

Because Dotson properly renewed his motion for judgment of

acquittal at the close of all the evidence, we apply the usual

standard of review to Dotson’s challenge to the sufficiency of the

evidence on Counts 16–18. See United States v. Robles-Pantoja, 887

F.2d 1250, 1254 (5th Cir. 1989). In other words, we view the

evidence and inferences therefrom in the light most favorable to

the jury’s verdict, and hold the evidence is sufficient if a

rational jury could have found the defendant guilty beyond a

6
reasonable doubt. Id.; United States v. Moser, 123 F.3d 813, 819

(5th Cir. 1997).

II. Waiver

The government argues that Dotson waived his challenge to his

conviction on Counts 16–18 by failing to (1) brief the issue before

trial as provided in the court’s pretrial order, and (2) renew the

motion and provide additional briefing after the jury’s verdict.

The only case the government cites in support of waiver by failing

to brief an issue before trial involves failure to move for

suppression of evidence before trial. United States v. Chavez-

Valencia, 116 F.3d 127, 129–33 (5th Cir. 1997). Motions to

suppress evidence must be made pretrial, however, according to Rule

12(b)(3) of the Federal Rules of Criminal Procedure, and untimely

12(b)(3) motions are waived unless the court grants relief from the

waiver. FED. R. CRIM. PROC. 12(b)(3)(C), 12(e).3 No argument has

been made that a challenge such as Dotson’s is in a category

requiring it to be raised pretrial. Furthermore, even if raising

the issue pretrial were required, and even if failure to raise the

3
Relevant portions of Rule 12 provide:
“(b) Pretrial Motions.
. . . .
(3) Motions That Must Be Made Before Trial. The following must be
raised before trial:
. . . .
(C) a motion to suppress evidence;
. . . .
(e) Waiver of a Defense, Objection, or Request. A party waives any Rule
12(b)(3) defense, objection, or request not raised by the deadline the
court sets under Rule 12(c) or by any extension the court provides. For
good cause, the court may grant relief from the waiver.”
FED. R. CRIM. PROC. 12.

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issue resulted in waiver as it does for 12(b)(3) motions,4 the

court can grant relief from such a waiver. The district court’s

denial of the motion without prejudice and statements that it would

entertain post-trial briefing on the issue indicate that the court

did not consider the issue waived.

With regard to Dotson’s failure to renew the motion or provide

briefing after the trial, the government cites no authority finding

a forfeiture or waiver on these grounds. On the other hand, the

Ninth Circuit has held that declining to provide additional

briefing requested by the trial court did not constitute a waiver

when the issue had been argued before the court. Bothell v. Phase

Metrics, Inc., 299 F.3d 1120, 1130 (9th Cir. 2002). By moving for

judgment of acquittal after the government’s evidence and again

after all of the evidence, Dotson not only met the requirements of

this circuit for preserving his argument of insufficiency of the

evidence, see Robles-Pantoja, 887 F.2d at 1254, but also made the

district court aware of his argument. Dotson has therefore

adequately preserved his challenge to the sufficiency of evidence

on Counts 16–18.

III. Sufficiency of Evidence on Counts 16–18

In his motion for judgment of acquittal, Dotson cited Gonzales

v. Prudential Insurance Co. of America, 901 F.2d 446, 450 (5th Cir.

4
As noted in Chavez-Valencia, failure to claim a right at trial ordinarily
results in forfeiture rather than waiver, where forfeited issues can be raised
on appeal under a plain error standard. Chavez-Valencia, 116 F.3d at 130.

8
1990), which discusses the “well-settled rule[] of Louisiana

insurance law” that “[r]egardless how the policy itself may define

‘total disability,’ . . . the term means the inability of the

insured to do substantially all of the material acts necessary to

the prosecution of his business or occupation in his usual and

customary manner.” As described in Gonzales, an insurer therefore

may not withhold disability benefits solely on the basis of a

claimant’s working at a different occupation. Id. Later in the

year that Gonzales was decided, the Louisiana legislature enacted

La. Rev. Stat. § 22:230 concerning the definition of “total

disability” in disability policies issued in the state. This

section codifies a rule similar to that described in Gonzales,

except that under the statute a claimant could be denied benefits

for working at a job with “substantially the same earning capacity”

as his former job, while under the previous rule he would have to

be working at the same job. LA. REV. STAT. § 22:230(C).5

Dotson argues that whether the rule described in Gonzales or

that of section 230 is applied, Louisiana law made Dotson eligible

for the PFIA benefits despite his work at the grocery store.

Specifically, he argues that because the government did not

5
Section 230(C) provides:
“A general definition of total disability in such a policy shall not be
more restrictive than one requiring the individual to be totally disabled
from engaging in any employment or occupation for which he is, or becomes,
qualified by reason of education, training, or experience and which
provides him with substantially the same earning capacity as his former
earning capacity prior to the start of the disability.”
LA. REV. STAT. § 22:230(C).

9
establish that Dotson was able to work either at his original job

or at a job having substantially the same earning capacity, his

work at the grocery store did not disqualify him for benefits.

Because he was entitled to the benefits, Dotson claims that he

could not have defrauded PFIA, even if he had intended to, because

his scheme carried out as intended would not have resulted in

fraud.6 In other words, Dotson argues that it was a “pure legal

impossibility” for him to have defrauded the PFIA by receiving

benefits while working at the grocery store, because the legal

impossibility was one which occurs “when the actions which the

defendant performs or sets in motion, even if fully carried out as

he desires, would not constitute a crime.” United States v.

Farner, 251 F.3d 510, 513 (5th Cir. 2001).

To prove mail fraud under 18 U.S.C. § 13417 in this circuit,

the government must show “(1) a scheme to defraud; (2) use of the

mails to execute that scheme; and (3) the specific intent to

6
Dotson does not challenge the sufficiency of the evidence on counts 16-
18 on any other basis.
7
Section 1341 provides in pertinent part:
“Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises, . . . for the purpose
of executing such scheme or artifice or attempting so to do, places in any
post office or authorized depository for mail matter, any matter or thing
whatever to be sent or delivered by the Postal Service, or deposits or
causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, or takes or
receives therefrom, any such matter or thing, or knowingly causes to be
delivered by mail or such carrier according to the direction thereon, or
at the place at which it is directed to be delivered by the person to whom
it is addressed, any such matter or thing, shall be fined under this title
or imprisoned not more than 20 years, or both.”
18 U.S.C. § 1341.

10
defraud.” United States v. Strong, 371 F.3d 225, 227 (5th Cir.

2004). For the crimes of larceny and robbery, there have been

cases holding that taking of money from another in the good-faith

belief that the money was owed to the defendant does not constitute

larceny or robbery, in that the defendant did not intend to deprive

the victim of the victim’s property. See, e.g., Barton v. State,

227 S.W. 317, 318–19 (Tex. Crim. App. 1921), overruled by Crawford

v. State, 509 S.W.2d 582 (Tex. Crim. App. 1974); People v.

Gallegos, 274 P.2d 608, 609 (Colo. 1954) (en banc), overruled by

People v. Moseley, 566 P.2d 331, 335 (Colo. 1977) (en banc). This

rule, to the extent it ever held sway, appears to have been widely

abandoned. See, e.g., State v. Ortiz, 305 A.2d 800, 801–02 (N.J.

Super. Ct. App. Div. 1973); Commonwealth v. Dombrauskas, 418 A.2d

493, 496–97 (Pa. Super. Ct. 1980); State v. Russell, 536 P.2d 1392,

1393–94 (Kan. 1975). In some cases, courts have rejected the rule

by reasoning that money owed to a creditor is not the same as money

owned by the creditor. See Edwards v. State, 181 N.W.2d 383,

387–88 (Wis. 1970); State v. Bull, 611 A.2d 672, 673–74 (N.J.

Super. Ct. Law Div. 1992), overruled on other grounds, State v.

Mejia, 662 A.2d 308, 320 (N.J. 1995); Russell, 536 P.2d at

1393–94; Fanin v. State, 100 S.W. 916, 917–18 (Tex. Crim. App.

1907) (all noting distinction between money and specific property

in this context). In other cases, courts have invoked public

policy arguments against self-help. See Dombrauskas, 418 A.2d at

11
497; Ortiz, 305 A.2d at 802; Henderson v. State, 192 S.W.2d 446,

447 (Tex. Crim. App. 1946).

Dotson’s argument of legal impossibility goes even farther

than a claim that he lacked the intent to defraud. After all, to

invoke the defense to larceny discussed above, the defendant had to

prove he had a good-faith belief in his right to the property.

Openness of the taking and reasonableness of the belief have been

considered indicative of such a good-faith belief. 3 WAYNE R.

LAFAVE, SUBSTANTIVE CRIMINAL LAW § 19.5(a) (2d ed. 2003). Although

Dotson testified that he believed he was entitled to the PFIA

benefits, there was sufficient evidence for a rational jury to find

otherwise. Rather than being open about his claim to the PFIA

benefits despite his work at the store, Dotson declined to inform

PFIA about the work. Furthermore, he did not bring up the apparent

discrepancy between the policy’s use of “your job” and the claim

form’s use of “work of any kind” in defining total disability, but

repeatedly signed the claim forms during the period he was working.

Dotson does not argue that the evidence fails to establish the

intent to defraud. Instead, he argues that even if he had such an

intent, his actions could not have resulted in fraud because he was

entitled to the benefits. Continuing the above analogy to larceny

or robbery, an example of Dotson’s legal impossibility argument in

that context might involve a defendant who intended to steal a

victim’s property and did so, only to later discover that the

12
property actually belonged to the defendant. In such a scenario,

the argument goes, the defendant could not be guilty of theft or

robbery because he would not have taken the property of another.

Dotson’s situation does not present a case of legal

impossibility, however. The money used by PFIA to pay Dotson’s

claims was unmistakably PFIA’s property, and it was certainly

possible for Dotson to defraud PFIA of it. Not only were the

benefits not property of Dotson, it was not contemplated that

Dotson would receive them unless and until a proper determination

was made by PFIA or by a court that Dotson was entitled to the

benefits. Mail fraud includes using the mail in a scheme “for

obtaining money or property by means of false or fraudulent

pretenses, representations, or promises,” 18 U.S.C. § 1341, and

there was sufficient evidence for the jury to reasonably determine

that Dotson did just that. A rational jury could find that

Dotson’s failure to inform PFIA of his other employment and his

signing of claim forms asking whether he was able to work at any

job constituted a misrepresentation to PFIA. The misrepresentation

must be material, Neder v. United States, 119 S.Ct. 1827, 1841

(1999), but there was sufficient evidence for the jury to find that

Dotson’s misrepresentation was. Both a vice president of PFIA and

Dotson’s local agent testified that Dotson would not have received

PFIA benefits if PFIA had known about his other work. Even if PFIA

had interpreted the policy to allow a claimant to do some other

13
work, the jury could reasonably infer that the fact that Dotson was

working at all would have been material to a determination of

whether he could in fact perform his police job.

Even assuming that Dotson would have prevailed in a court

action to obtain benefits from PFIA under Louisiana law,8 he is not

entitled to speed up the process by obtaining the benefits through

misrepresentation. The Supreme Court has repeatedly noted that

misrepresentation cannot be justified by incorrectness of the

position of the party to whom the misrepresentation is made. See

United States v. Mandujano, 96 S.Ct. 1768, 1776–77 (1976)

(sanctions for false statements or perjury allowed even when

inquiry was unconstitutional); Dennis v. United States, 86 S.Ct.

1840, 1846–47 (1966) (“It is no defense to a charge based upon

[conspiracy to circumvent a law through deceit] that the statutory

8
The government argues that Louisiana law regulating disability insurance
policies does not apply to PFIA because it is a fraternal benefit society,
allowed to provide benefits, including disability benefits, “in any form.” See
LA. REV. STAT. § 22:556. Dotson argues that the government did not establish that
PFIA qualifies as a fraternal benefit society under Louisiana law. Even assuming
that PFIA qualifies as a fraternal benefit society, it would not necessarily
enjoy the amount of freedom from Louisiana insurance law that the government
urges. Section 559 of the Louisiana Insurance Code requires a fraternal benefit
society to issue a certificate to each owner of a benefit contract, and further
requires that “[e]very life, accident, health, or disability insurance
certificate . . . shall meet the standard contract provision requirements not
inconsistent with [this] Part for like policies issued by life insurers in this
state. . . .” LA. REV. STAT. § 22:559(F). Fraternal benefit societies are likely
therefore bound by Louisiana insurance law with respect to their benefit
contracts, except for provisions of the law inconsistent with Part 13 of the
Louisiana Insurance Code governing fraternal benefit societies. The government
has not argued that the restrictions in Louisiana law on the definition of “total
disability” are inconsistent with Part 13. There is also case law to the effect
that benefit certificates from benefit societies are subject to the law governing
insurance policies. See, e.g., Succession of McNamara, 5 Teiss. 13, 1907 WL 1525
(La. App. Orleans 1907). We need not ultimately resolve this issue however,
because, for the reasons stated in the text, even if it were resolved in Dotson’s
favor his instant appeal would still be without merit.

14
scheme sought to be evaded is somehow defective.”); United States

v. Lawton, 366 F.3d 550 (7th Cir. 2004) (citing cases).

Because there is sufficient evidence for a rational jury to

find that Dotson devised a scheme to obtain money from PFIA through

misrepresentation, we affirm Dotson’s conviction on Counts 16–18.

Accordingly, we need not reach Dotson’s claim that his convictions

on the remaining counts were tainted by “spillover.”

Conclusion

For the foregoing reasons, the judgment of the district court

is

AFFIRMED.

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